On June 12, 1997, Mark A. Christensen filed a complaint with the Wisconsin
Employment
Relations Commission alleging that the City of Racine had committed a prohibited practice
within the
meaning of Sec. 111. 70(3)(a)3, Stats. by failing to promote Christensen to the position of
Lieutenant
in the City of Racine Police Department because Christensen had previously raised issues
regarding
alleged inequities in the Department's promotional process.

Thereafter the parties asked that I be appointed Examiner to determine whether under
the
facts alleged in the complaint, Secs. 111.70(2) and (3)(a)3, Stats. have any application. The
record
was closed on March 9, 1998 upon receipt of a stipulation and statement of issue.

To maximize the ability of the parties we serve to utilize the Internet
and computer
software to research decisions and arbitration awards issued by the Commission and its staff,
footnote text is found in the body of this decision.

No. 29370-A Page 2

Dec. No. 29370-A

Having considered the matter, I am satisfied that because Christensen is a supervisor
within
the meaning of Sec. 111.70 (1)(o)1, Stats., he has no rights under Sec. 111.70(2), Stats. and
thus that
the failure to promote him cannot violate Sec. 111.70(3)(a)3, Stats.

Therefore, the complaint is dismissed.

Dated at Madison, Wisconsin, this 6th day of May, 1998.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

Peter G. Davis /s/

Peter G. Davis, Examiner

Page 3

Dec. No. 29370-A

CITY OF RACINE (POLICE)

MEMORANDUM ACCOMPANYING
ORDER

The parties have asked whether a supervisor who is denied a promotion to another
supervisory position has any rights under Secs. 111.70(2), Stats. and Sec. 111.70(3)(a)3,
Stats.

By its terms, Sec. 111.70(2), Stats. creates rights which are limited to "municipal
employes."
1/ The parties stipulated that Christensen is a "supervisor" within the meaning of Sec.
111.70(1)(o)1,
Stats. 2/ Therefore, he is not a "municipal employe" within the meaning of Sec.
111.70(1)(i), Stats.
3/ Therefore, Christensen has no rights under Sec. 111.70(2), Stats.

1/ Section 111.70(2) provides in pertinent
part:

(2) RIGHTS OF
MUNICIPAL EMPLOYES. Municipal employes shall have
the right of self-organization, and the right to form, join or assist labor organizations, to
bargain
collectively through representatives of their own choosing, and to engage in lawful, concerted
activities for the purpose of collective bargaining or other or other mutual aid or protection,
and
such employes shall have the right to refrain from any and all such activities except that
employes
may be required to pay dues in the manner provided in a fair-share
agreement.

2/ Section 111.70(1)(o)1, Stats.
provides:

(o) "Supervisor"
means:

1. As to other than
municipal and county fire fighters, any individual who has
authority, in the interest of the municipal employer, to hire, transfer, suspend, lay off, recall,
promote, discharge, assign, reward or discipline other employes, or to adjust their grievances
or
effectively to recommend such action, if in connection with the foregoing the exercise of
such
authority is not of a merely routine or clerical nature, but requires the use of independent
judgment.

3/ Section 111.70(1)(I), Stats.
provides:

(i) "Municipal employe" means
any individual employed by a municipal employer
other than an independent contractor, supervisor, or confidential, managerial or executive
employe.

Page 4

Dec. No. 29370-A

A necessary element of an alleged violation of Sec. 111.70(3)(a)3, Stats. is that a
"municipal
employe" has exercised rights created by Sec. 111.70(2), Stats. Muskego-Norway C.S.J.S.D.
No.
9 V. WERB, 35 Wis. 2d 540 (1967); Green Bay School District, Dec. No. 28871-B
(WERC,
4/98). Because Christensen is not a "municipal employe", he cannot establish this necessary
element
and thus cannot establish a violation of Sec. 111.70 (3)(a)3, Stats. Therefore, I have
dismissed the
complaint.

Because Christensen is a supervisor, his complaint does not raise the issue presented
in State
of Wisconsin, Dec. No. 15699-B (WERC, 11/81) where a non-supervisory employe was
denied a
promotion to a supervisory position for having engaged in lawful concerted activity.